SCHEDULE 12 PROTECTIVE PROVISIONS
Article 45
PART 1 FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS
1 For the protection of the utility undertakers referred to in this Part of this Schedule (save for any utility undertakers which are specifically protected by any other Part of this Schedule, which will take precedence), the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertakers concerned.
2 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means—
in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989, belonging to or maintained by that utility undertaker;
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;
in the case of a water undertaker—
mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; and
any water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991;
in the case of a sewerage undertaker—
any drain or works vested in the utility undertaker under the Water Industry Act 1991; and
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewage disposal works, at future date) of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus; and
any other mains, pipelines or cables that are not the subject of the protective provisions in Parts 2 to 16 of this Schedule;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land; and
“utility undertaker” means—
any licence holder within the meaning of Part 1 (electricity supply) of the Electricity Act 1989;
a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986;
water undertaker within the meaning of the Water Industry Act 1991;
a sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991; and
an owner or operator of apparatus within sub-paragraph (e) of the definition of that term,
for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
3 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 of the 1991 Act.
4 Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), a utility undertaker is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.
5 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.
6 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (7).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 49 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.
(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
7 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
8 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(2), the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.
(4) If a utility undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
9 (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 6(2).
(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraph 6(2); and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1), if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
10 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 6(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—
(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(3) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
11 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaking in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 2 FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS
12 For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.
13 In this Part of this Schedule—
“the 2003 Act” means the Communications Act 2003;
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“electronic communications code” has the same meaning as in section 106 (application of the electronic communications code) of the 2003 Act;
“electronic communications code network” means—
so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and
an electronic communications network which the Secretary of State is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and
“operator” means the operator of an electronic communications code network.
14 The exercise of the powers of article 39 (statutory undertakers) is subject to Part 10 (undertakers’ works affecting electronic communications apparatus) of the electronic communications code.
15 (1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—
(a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or other property of an operator; or
(b) there is any interruption in the supply of the service provided by an operator,
the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 49 (arbitration).
16 This Part of this Schedule does not apply to—
(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or
(b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.
17 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 3 FOR THE PROTECTION OF THE ENVIRONMENT AGENCY
Application
18 The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.
Interpretation
19 In this Part of this Schedule—
“Agency” means the Environment Agency;
“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” is construed accordingly;
“drainage work” means any main river and includes any land which provides flood storage capacity; or any other land which is expected to provide flood storage capacity as a result of the authorised development pursuant to the details approved in compliance with requirement 18(1); or any land which provides flood storage for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;
“emergency” means an occurrence which presents a risk of—
serious flooding;
serious detrimental impact on drainage;
serious harm to the environment;
“fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;
“main river” has the same meaning given in section 113 of the Water Resources Act 1991;
“non-tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2016;
“plans” includes plans, sections, elevations, drawings, specifications, programmes, proposals, calculations, method statements, protocols for emergency access and descriptions;
“remote defence” means any berm, wall or embankment that is constructed for the purposes of preventing or alleviating flooding from, or in connection with, any main river;
“sea defence” means any bank, wall, embankment (any berm, counterwall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949 or by any local authority or any navigation, harbour or conservancy authority;
“specified work” means so much of any work or operation authorised by this Order, including works required pursuant to documents certified under Schedule 13 or approved under Schedule 2, as is in, on, under, over or within—
16 metres of the base of a sea defence which is likely to—
endanger the stability of, cause damage or reduce the effectiveness of that sea defence, or
interfere with the Agency’s access to or along that sea defence or the Agency’s ability to undertake works to ensure the efficacy of that sea defence;
8 metres of the base of a remote defence which is likely to—
endanger the stability of, cause damage or reduce the effectiveness of that remote defence, or
interfere with the Agency’s access to or along that remote defence;
16 metres of a drainage work involving a tidal main river,
8 metres of a drainage work involving a non–tidal main river;
any distance of a drainage work and is otherwise likely to—
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity or quality of water in any main river or other surface waters;
cause obstruction to the free passage of fish or damage to any fishery;
affect the conservation, distribution or use of water resources; or
affect the conservation value of the main river and habitats in its immediate vicinity;
or which involves
an activity to which paragraph 22(3) of this Part of this Schedule applies; and
any quarrying or excavation within 16 metres of a drainage work which is likely to cause damage to or endanger the stability of the banks or structure of that drainage work; and
“Thames Flood Acts” means the Metropolis Management (Thames River Prevention of Floods) Amendment Act 1879 and Thames Barrier and Flood Prevention Act 1972 and amending legislation;
“tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2016.
Submission and approval of plans
20 (1) Before the beginning to construct any specified work, the undertaker must submit to the Agency for approval plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably request.
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 32.
(3) Any approval of the Agency required under this paragraph—
(a) must not be unreasonably withheld or delayed;
(b) is deemed to have been refused if it is neither given nor refused within two months of the submission of the plans or such later date as is agreed between the Agency and the undertaker and if further particulars have been requested pursuant to sub-paragraph (1) the period between the making of this request and the provision of further particulars in response to it will not be taken into account in the calculation of the two months for the purposes of this sub-paragraph (b);
(c) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or for nature conservation or the prevention of environmental harm in the discharge of its environmental duties.
(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).
(5) In the case of a refusal, the Agency must provide reasons for the grounds of that refusal.
Dredging
21 (1) Before carrying out an activity that includes dredging, raising or taking of any sand, silt, ballast, clay, gravel or other materials from or off the bed or banks of a drainage work (or causing such materials to be dredged, raised or taken), including hydrodynamic, dredging or desilting, the undertaker must submit details of the activity to the Agency.
(2) Within 14 days of receipt of the details submitted by the undertaker under sub-paragraph (1), the Agency must confirm whether the activity requires consent under paragraph 20.
(3) This sub-paragraph applies in the event that, pursuant to sub-paragraph (2), the Agency confirms that the proposed activity requires consent under paragraph 20.
Construction of protective works
22 Without limiting paragraph 20, the requirements which the Agency may have under that paragraph include conditions requiring the undertaker, at its own expense, to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a) to safeguard any drainage work against damage; or
(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,
by reason of any specified work.
Timing of works and service of notices
23 (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 22, must be constructed—
(a) without unreasonable delay in accordance with the plans approved under this Part of this Schedule; and
(b) to the reasonable satisfaction of the Agency,
and the Agency is entitled by its officer to watch and inspect the construction of such works.
(2) The undertaker must give to the Agency not less than fourteen days’ notice in writing of its intention to begin construction of any specified work and notice in writing of its completion not later than seven days after the date on which it is completed.
(3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work to which the protective works relate.
Works not in accordance with this Part of this Schedule
24 (1) Where the undertaker fails to obtain consent or comply with conditions imposed by the Agency in accordance with this Part of this Schedule and the Agency, acting reasonably, considers it necessary to avoid any of the risks specified in sub-paragraph (2), the Agency may serve written notice requiring the undertaker to cease all or part of the specified works as may be specified within the notice within the period specified in the notice, and the undertaker must cease constructing the specified works or part thereof until such time as it has obtained the consent or complied with the condition specified within the notice served.
(2) The risks specified in sub-paragraph (1) are—
(a) risk of flooding;
(b) risk of harm to the environment;
(c) risk of detrimental impact on drainage;
(d) damage to the fishery;
(e) risk to the integrity or condition of any drainage work.
(3) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.
(4) Subject to sub-paragraph (5), if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph 24(3) is served upon the undertaker except in an emergency when a shorter period can be given, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.
(5) In the event of any dispute as to whether sub-paragraph 24(3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined in accordance with sub-paragraph 24(3).
Maintenance of works
25 (1) Subject to sub-paragraph (5) the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.
(2) If any such drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.
(3) Subject to sub-paragraph (4), if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 32.
(5) This paragraph does not apply to—
(a) drainage works which the Agency or another person is liable to maintain and is not proscribed by the powers of the Order from doing so; and
(b) any obstruction of a drainage work expressly authorised in the approval of specified works plans and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable if removal is required.
Remediating impaired drainage work
26 If by reason of the construction of any specified work or of the failure of any such work, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure incurred by the Agency in so doing from the undertaker.
Agency access
27 (1) If by reason of the construction of any specified work or the failure of any such work, the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must notify the Agency as soon as reasonably practicable and provide suitable alternative means of access that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction occurred and such alternative access must be made available as soon as reasonably practicable after the undertaker becomes aware of such obstruction, except in the case of an emergency in which case the undertaker must provide such alternative means of access in accordance with protocols for emergency access approved under paragraph 20.
(2) For the purposes of paragraph (1), the Great Breach Pumping Station is considered to be equipment maintained for flood defence purposes.
(3) Nothing in sub-paragraph (1) prevents the Agency from utilising its statutory powers.
Free passage of fish
28 (1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.
(2) If by reason of—
(a) the construction of any specified work; or
(b) the failure of any such work,
damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage within the period specified in the notice.
(3) If the undertaker fails to take such steps as are described in the notice served under sub-paragraph (2), the Agency may take those steps and any expenditure incurred by the Agency in so doing is recoverable from the undertaker.
(4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any expenditure incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.
The Thames Flood Acts works
29 Nothing in Article 7 prevents the Agency serving a notice on the undertaker under the Thames Flood Acts requiring works to, or financial contributions towards, raising the crest levels of flood defences or reinforcement to flood defences to improve the standard of flood protection and the undertaker being required to comply with any such notice pursuant to the Thames Flood Acts.
Costs and indemnity
30 The undertaker indemnifies the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur—
(a) in the examination or approval of plans under this Part of this Schedule;
(b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and
(c) in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works.
31 (1) The undertaker is responsible for and indemnifies the Agency against all costs and losses, liabilities, claims and demands not otherwise provided for in this Schedule which may be reasonably incurred or suffered by the Agency by reason of, or arising out of—
(a) the construction, operation or maintenance of any specified works comprised within the authorised development or the failure of any such works comprised within them; or
(b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised development or dealing with any failure of the authorised development.
(2) For the avoidance of doubt, in sub-paragraph (1)—
“costs” includes—
expenses and charges;
staff costs and overheads; and
legal costs;
“losses” includes physical damage;
“claims” and “demands” include as applicable—
costs (within the meaning of this sub-paragraph (2) incurred in connection with any claim or demand; and
any interest element of sums claimed or demanded; and
“liabilities” includes—
contractual liabilities;
tortious liabilities (including liabilities for negligence or nuisance);
liabilities to pay statutory compensation or for breach of statutory duty; and
liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).
(3) The Agency must give to the undertaker reasonable notice of any such claim or demand and must not settle or compromise a claim without the agreement of the undertaker and that agreement must not be unreasonably withheld or delayed.
(4) The Agency must, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.
(5) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, must not relieve the undertaker from any liability under the provisions of this Part of this Schedule.
(6) Nothing in this paragraph imposes any liability on the undertaker with respect to any costs, charges, expenses, damages, claims, demands or losses to the extent that they are attributable to the neglect or default of the Agency, its officers, servants, contractors or agents.
Disputes
32 Any dispute arising between the undertaker and the Agency under this Part of this Schedule must, if the parties agree, be determined by arbitration under article 49 (arbitration), but failing agreement be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for the department of Energy Security and Net Zero or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to the other.
PART 4 FOR THE PROTECTION OF THAMES WATER UTILITIES LIMITED
Application
33 The provisions of this Part of the Schedule, unless otherwise agreed in writing between the undertaker and TWUL, have effect.
Interpretation
34 In this Part of this Schedule—
“access road” means the existing access road connecting Norman Road to the existing Crossness Sewage Treatment Works;
“alternative apparatus” means alternative apparatus adequate to enable TWUL to fulfil its statutory functions in a manner no less efficient and effective than previously;
“apparatus” means—
any drain, disposal works or sewer vested in TWUL under the Water Industry Act 1991; and
any sewer, drain or disposal works which are the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal of works) of the Water Industry Act 1991 or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewage disposal works, at a future date) of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of the Water Industry Act 1991) or sewer outfall and any manholes, ventilating shafts, pumps, inspection chambers or other accessories (as defined in section 219 (general interpretation) of the Water Industry Act 1991) forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land;
“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed.
On street apparatus
35 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and TWUL are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Apparatus in stopped up streets and public rights of way
36 (1) Except where paragraph 40 applies, where any street is stopped up under article 15 (permanent stopping up of specified street and private means of access) or any public right of way is stopped up under article 17 (permanent closure and diversion of, and creation of new public rights of way and authorising vehicular use on public rights of way), TWUL has the same powers and rights in respect of any apparatus in the land in which the street or public right of way subsists as it enjoyed immediately before the stopping up and the undertaker must grant to TWUL legal easements reasonably satisfactory to TWUL in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of TWUL to require the removal of that apparatus, or provision of alternative apparatus under paragraph 39 or the power of the undertaker to carry out works under paragraph 41.
(2) Regardless of the temporary alteration, diversion or restriction of any street under the powers conferred by article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), TWUL is at liberty at all times to take all necessary access across any such stopped up street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that street, upon giving at least three weeks’ notice of such intended entry, unless in an emergency.
Access Road
37 (1) The undertaker must not stop up in whole or in part the access road under article 15 (permanent stopping up of specified street and private means of access) or extinguish in whole or in part any right of TWUL along the access road unless and until—
(a) the undertaker has submitted plans for Work No. 8 and its connection to Norman Road to TWUL and TWUL has approved them;
(b) the undertaker has provided TWUL with a new right to use, keep, inspect, renew and maintain the new access road created under Work No. 8 that is reasonably convenient and on terms agreed by TWUL; and
(c) TWUL’s agreement and approvals under sub-paragraphs (a) and (b) must not to be unreasonably withheld or delayed but may be given in accordance with such reasonable requirements as may be made by TWUL in respect of ensuring continued operational and emergency access to the existing Crossness Sewage Treatment Works from Norman Road.
(2) The works in sub-paragraph (1)(a) must be executed only in accordance with the plans approved under that sub-paragraph.
(3) Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any interest in the access road ... otherwise than by agreement.
Protective works to buildings
38 The undertaker, in the case of the powers conferred by article 23 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.
Acquisition of land or interests
39 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus of TWUL otherwise than by agreement.
Removal of apparatus
40 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that TWUL’s apparatus is removed, relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of TWUL to maintain that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of TWUL in accordance with sub-paragraphs 40(2) to(6).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to TWUL 56 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed for approval by TWUL and in that case (or if in consequence of the exercise of any of the powers conferred by this Order TWUL reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to TWUL the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed TWUL must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall not extend to the requirement for TWUL to use its compulsory purchase powers to this end unless it elects (in its absolute discretion) to so do.
(4) Any default of agreement or approval of TWUL under sub-paragraph (1) or (2) must be settled by arbitration in accordance with article 49 (arbitration).
(5) TWUL must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 49 (arbitration), and after the grant to TWUL of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), and subject to sub-paragraph (7), if the undertaker gives notice in writing to TWUL that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, and TWUL gives its consent in writing (which shall not be unreasonably withheld or delayed and shall be subject to the provisions of sub-paragraph (7)), that work, instead of being executed by TWUL, may be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of TWUL.
(7) If by the end of the period of 56 days from the submission of the details relating to required removal works under sub-paragraph (1), the confirmation of the reasonable satisfaction of the construction and operation of alternative apparatus under sub-paragraph (2) or the carrying out of works pursuant to sub-paragraph (6) TWUL has not intimated their disapproval of those details and the grounds of such disapproval, the undertaker may give TWUL written notice requiring TWUL to intimate approval or disapproval within a further period of 28 days beginning with the date upon which TWUL receives written notice from the undertaker and if by the expiry of the further 28 days TWUL has not intimated approval or disapproval, TWUL shall be deemed to have approved the details as submitted provided that such notification has been made in accordance with paragraph 56 (notices and applications).
(8) Any deemed approval under sub-paragraph (7) does not extend to the actual undertaking of the removal works, which remains the sole responsibility of TWUL or its contractors.
Facilities and rights for alternative apparatus
41 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to TWUL facilities and rights for the construction and maintenance of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and TWUL or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in the land of the undertaker, the arbitrator will—
(a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptions of the alternative apparatus which may be required to prevent interference with the proposed works of the undertaker; and
(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or on the land for which the alternative apparatus is to be substituted; and
(c) give effect to the statutory obligations of TWUL and the undertaker.
(3) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to TWUL than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to TWUL as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
42 (1) Not less than 56 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are within 5 metres of the outside face of any apparatus the removal of which has not been required by the undertaker under paragraph 40(2), the undertaker must submit to TWUL a plan of the works to be executed.
(2) The undertaker must not commence any works to which sub-paragraph (1) applies until TWUL has given written approval of the plan so submitted and such approval may be given subject to reasonable requirements for the purposes mentioned in sub-paragraph (3).
(3) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements or modifications as may be made in accordance with sub-paragraph (4) by TWUL for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and TWUL is entitled to watch and inspect the execution of those works upon giving at least three weeks’ notice of such intended entry to watch and inspect, unless in an emergency.
(4) Any requirements made by TWUL as a condition of the approval under sub-paragraph (2) must be notified to the undertaker within a period of 35 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(5) If by the end of the period of 35 days from the submission of the details relating to required works under sub-paragraph (1) TWUL has not intimated their disapproval of those details and the grounds of such disapproval, the undertaker may give TWUL written notice requiring TWUL to intimate approval or disapproval within a further period of 28 days beginning with the date upon which TWUL receives written notice from the undertaker and if by the expiry of the further 28 days TWUL has not intimated approval or disapproval, TWUL shall be deemed to have approved the details as submitted provided that such notification has been made in accordance with paragraph 56 (notices and applications).
(6) If TWUL in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 34 to 36 and 40 to 42 apply as if the removal of the apparatus had been required by the undertaker under paragraph 40(2).
(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works (unless otherwise agreed with TWUL), a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(8) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency works but in that case must—
(a) give TWUL notice in accordance with paragraph 56 (notices and applications) as soon as is reasonably practicable;
(b) provide TWUL with a plan of those works as soon as reasonably practicable subsequently;
(c) carry out the works in accordance with industry best practice and guidelines on safe working near utilities;
(d) comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances; and
(e) keep the impact of those emergency works on TWUL’s apparatus to a minimum.
(9) In this Part of this Schedule “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent which are likely to cause danger to persons or serious damage to property. Where works comprise items some of which fall within this definition, the expression “emergency works” shall be taken to include such of the items as do not fall within that definition as cannot reasonably be severed from those that do.
Expenses and costs
43 (1) Subject to the following provisions of this paragraph, the undertaker must repay to TWUL all expenses reasonably incurred and any compensation properly paid by TWUL in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any alternative apparatus which may be required in consequence of the execution of any such works as are referred to in paragraphs 40(2), 42(2) or 42(3).
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to TWUL by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to TWUL in respect of works by virtue of sub-paragraph (1), if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on TWUL any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
44 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, maintenance or failure of any of the works referred to in paragraph 42(2)42(2), any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or there is any interruption in the service provided by such apparatus or alternative apparatus, the undertaker must—
(a) bear and pay the cost reasonably and properly incurred by TWUL in making good such damage or restoring the service; and
(b) indemnify TWUL against all reasonable claims, penalties, demands, proceedings, costs, damages and expenses which are made or taken against or recovered from, or reasonably and properly incurred by TWUL, by reason or in direct consequence of any such damage or interruption.
(2) The fact that any act or thing may have been done by TWUL on behalf of the undertaker or in accordance with a plan approved by TWUL or in accordance with any requirement of TWUL or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless TWUL fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of TWUL, its officers, servants, contractors or agents.
(4) TWUL must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Cooperation
45 Where in consequence of the proposed construction of any of the authorised development, the undertaker or TWUL requires the removal of apparatus under paragraph 40(2) or TWUL makes requirements for the protection or alteration of apparatus under paragraph 42, the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of TWUL’s undertaking and TWUL must use its best endeavours to co-operate with the undertaker for that purpose.
46 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and TWUL in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
47 At all times the undertaker shall procure that its employees, contractors and subcontractors take all reasonable and proper precautions in exercise of powers conferred by this Order to ensure that as little damage, obstruction or interference is caused is caused to TWUL’s undertaking as is reasonably practicable save that this obligation shall not prevent the construction or operation of the authorised development.
48 In this Part of this Schedule, where the agreement or approval of TWUL is required, such agreement or approval must not be unreasonably withheld or delayed.
Use of statutory powers
49 In the event that TWUL carries out any works involving apparatus, including under its own statutory powers, at the express written request of the undertaker then—
(a) this Part of this Schedule shall apply to such works and TWUL covenants to observe and comply with this Part of this Schedule irrespective of whether it is carrying out the works under its own statutory powers or in reliance on the powers conferred by the Order; and
(b) TWUL covenants to comply with the terms of the Order.
Ground works and surveys
50 The undertaker must provide written notice to TWUL as soon as reasonably practicable in the event they determine to alter the ground level more than 300mm within 5 metres laterally of the outside face of any apparatus. Upon receiving such notice, TWUL will determine if works under paragraphs 40(2) or 42(2) are necessary and the timescales in paragraphs 42(4) and 42(5) shall apply to such determination from the date of receipt of the notice.
51 The undertaker must provide written notice to TWUL as soon as reasonably practicable if they intend to survey using ground intrusive methods within 5 metres laterally of the outside face of any apparatus. Upon receiving such notice, TWUL will determine if works under paragraphs 40(2) or 42(2) are necessary and the timescales in paragraphs 42(4) and 42(5) shall apply to such determination from the date of receipt of the notice.
Consultation
52 The undertaker must consult with TWUL on draft documentation prior to the submission of any plan, scheme or strategy under requirements 7 (code of construction practice), 9 (construction traffic management plan), 10 (emergency preparedness and response plan), 12 (landscape, biodiversity, access and recreation delivery strategy) and 13 (surface and foul water drainage), to the relevant planning authority.
53 At least 56 days prior to the submission of the landscape, biodiversity, access and recreation delivery strategy (“LaBARDS”) to the relevant planning authority in accordance with requirement 12, the undertaker must invite TWUL (in accordance with paragraph 56) to review and input into the LaBARDS proposed to be submitted to the relevant planning authority and the undertaker must include such reasonable suggestions made by TWUL in relation to the part of the Crossness Nature Reserve owned by TWUL.
54 If TWUL does not respond to the invitation to which paragraph 53 refers within the 56 day period, TWUL shall be deemed to have rejected the invitation and the undertaker may proceed to submitting the LaBARDS to the relevant planning authority without any input from TWUL.
55 Any dispute as to the reasonableness of any suggestions made by TWUL in accordance with paragraph 53 shall be referred to arbitration in accordance with article 49 (arbitration) and the undertaker may not submit the LaBARDS to the relevant planning authority for approval if a matter referred to arbitration remains undetermined.
Notices and applications
56 Notwithstanding any other provision of this Order, any—
(a) written notice to TWUL provided for in this Order; or
(b) application for the approval of TWUL made pursuant to article 21 (discharge of water),
must be made by email to devcon.team@thameswater or developer.services@thameswater.co.uk or such other contact details as may be provided by TWUL to the undertaker from time to time. In the case of emergencies, notice must also be given via the Thames Water website or such other contact details as may be provided by TWUL to the undertaker from time to time.
PART 5 FOR THE PROTECTION OF THE PORT OF LONDON AUTHORITY
57 The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the PLA, for the protection of the PLA in relation to the construction, maintenance, operation and decommissioning of the authorised development.
Interpretation
58 In this Part of this Schedule—
“construction” includes execution, placing, altering, removing, replacing, maintaining, relaying and renewal and, in its application to a specified work which includes or comprises any operation, means the carrying out of that operation and “construct” and “constructed” have corresponding meanings;
“core information” means the information (including information comprised in plans) regarding specified works or specified functions that the PLA may from time to time prescribe as being required to accompany any submission of plans for approval under paragraph 59, such information being that which the PLA publishes on its website from time to time as being required to accompanying an application for a works licence under section 66 (licensing of works) or, as the case may be, an application for a licence to dredge under section 73 (licensing of dredging, etc.) of the 1968 Act;
“the PLA Harbour Master” means the means any harbour master of the PLA and any of their authorised deputies and assistants and any person authorised by the PLA to act in that capacity;
“maintaining” does not include the activities listed in section 66(4) of the 1968 Act;
“plans” includes navigational risk assessments, plans, sections, elevations, drawings, specifications, programmes, construction methods and descriptions including, where applicable, such relevant hydraulic information about the river Thames as may be reasonably requested by the PLA and details of where the undertaker considers that paragraph 59(8), paragraph 59(10), article 8(2) or article 8(4) should apply to existing structures;
“specified function” means any function of the undertaker under this Order (except any function under articles 28 (compulsory acquisition of land), 30 (compulsory acquisition of rights) and 31 (acquisition of subsoil or airspace only), the exercise of which may affect the river Thames or any function of the PLA; and
“specified work” means—
any part of the authorised development (which for this purpose includes the removal of any part of the authorised development or any decommissioning works), which—
is, may be, or takes place in, on, under or over the surface of land below mean high water level forming part of the river Thames; or
may affect the river Thames or any function of the PLA; and
any projection over the river Thames (whether inside or outside the Order limits) by any authorised work or any plant or machinery.
Approval of detailed design
59 (1) The undertaker must not commence the construction of any specified work or the exercise of any specified function until plans of the work or function have been approved in writing by the PLA.
(2) The undertaker must submit to the PLA plans of the specified work or specified function together with all relevant core information and must thereafter provide such further particulars as the PLA may, within 20 business days starting with the day on which plans are submitted under this sub-paragraph, reasonably require, and the particulars so supplied are to provide all information necessary to enable the PLA to determine whether approval should be given and, if so, whether conditions should be imposed.
(3) Any approval of the PLA required under this paragraph must not be unreasonably withheld or delayed but may be given subject to such reasonable modifications, terms and conditions as the PLA may make for the protection of—
(a) traffic in, or the flow or regime of, the river Thames;
(b) the use of its land, or the river Thames, for the purposes of performing its functions; or
(c) the performance of any of its functions connected with environmental protection.
(4) Requirements made under sub-paragraph (3) may include conditions as to—
(a) the proposed location of any temporary work and its dimensions or the location where the specified function is proposed to be exercised;
(b) the programming of temporary works or the exercise of the specified function including the timing and management of giving up temporary possession;
(c) the removal of any temporary work and the undertaking by the undertaker of any related work or operation that the PLA considers to be necessary for the purpose of removing or preventing any obstruction to navigation;
(d) the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the specified work or specified function; and
(e) the expiry of the approval if the undertaker does not commence construction or carrying out of the approved specified work or exercise of the specified function within a prescribed period.
(5) Subject to sub-paragraph (6), an application for approval under this paragraph is deemed to have been refused if it is neither given nor refused—
(a) in the case of an application for approval under article 27 (power to dredge), within 40 business days of the paragraph 59 specified day; and
(b) in any other case, within 30 business days of the paragraph 59 specified day.
(6) An approval of the PLA under this paragraph is not deemed to have been unreasonably withheld or delayed if approval within the time limited by sub-paragraph (5) has not been given pending the outcome of any consultation on the approval in question that the PLA is obliged to carry out in the proper exercise of its functions.
(7) The undertaker must carry out all operations for the construction of any specified work or the specified function without unnecessary delay and to the reasonable satisfaction of the PLA so that traffic in, or the flow or regime of, the river Thames, and the exercise of the PLA’s functions, do not suffer more interference than is reasonably practicable. The PLA is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey those operations and the undertaker must provide all reasonable facilities to enable that inspection and survey to take place.
(8) To the extent that the PLA approves under sub-paragraph (1) the carrying out of any specific works or the exercising of any specified functions outside of the limits of deviation of Work No.4, and the physical extent of any existing structures that are authorised by a works licence granted by the PLA under section 66 (licensing of works) of the 1968 Act is changed or any of the existing structures are removed in their entirety as a result of the carrying out of that specified work or exercise of that specific function—
(a) such works shall not constitute a breach of that works licence;
(b) the undertaker must notify the holder of that works licence of the specified works or specified functions that are intended to be carried out on the existing structures, at least 30 business days before the specified works or specified functions are carried out;
(c) within 30 business days following the completion of that specified work or exercise of that specific function, the undertaker must provide the PLA with such information as the PLA may reasonably require as to the changed physical extent or to confirm the entire removal of those existing structures;
(d) unless sub-paragraph (10) applies, the PLA must within 30 business days of receipt of the information referred to in sub-paragraph (c) issue to the holder of the works licence granted by the PLA under section 66 (licensing of works) of the 1968 Act in respect of the existing structures in question a new licence to reflect—
(i) the physical changes to the existing structures; and
(ii) any changes to the conditions of the works licence it considers necessary to reflect the physical changes and to meet the requirements of the 1968 Act and the PLA’s duties under it;
(e) from the date of its issue that new licence shall apply to the changed extent of the remaining existing structures in question, the existing works licence shall be revoked, the holder of the licence must comply with the conditions of the new licence and the 1968 Act shall apply to the remaining existing structures and works authorised by the new licence; and
(f) the holder of the works licence for the existing structures in questions shall have the right to appeal the conditions of any new works licence issued by the PLA under sub-paragraph (1)(b) of section 69 (appeal to board of trade) of the 1968 Act.
(9) Where sub-paragraph (8) applies, the undertaker must—
(a) compensate the holder of the works licence for any reasonable increase to the costs of that licence holder of complying with the conditions of the new works licence, compared to the costs of complying with the works licence that previously applied; and
(b) pay the reasonable costs of the PLA in complying with sub-paragraph (8)(d) and in connection with the reasonable costs of the PLA’s participation in any appeal made under sub-paragraph (1)(b) of section 69 (appeal to board of trade) of the 1968 Act in connection with a new works licence issued under sub-paragraph (8)(f).
(10) To the extent that the PLA approves under sub-paragraph (1) the carrying out of any specific works or the exercising of any specified functions outside of the limits of deviation of Work No.4 and all existing structures that are authorised by a works licence granted by the PLA under section 66 (licensing of works) of the 1968 Act are removed in their entirety as a result of the carrying out of that specified work or exercise of that specific function, and article 8 does not apply—
(a) following the completion of that specified work or exercise of that specific function, the undertaker must provide the PLA with information to demonstrate that the existing structures have been removed in their entirety; and
(b) upon the PLA being satisfied that the existing structures have been removed in their entirety it must—
(i) notify the undertaker that it is so satisfied; and
(ii) write to the holder of the works licence to confirm that that works licence is terminated.
(11) Where sub-paragraph (10) applies, the undertaker must pay the reasonable costs of the PLA in complying with sub-paragraph (10)(b).
(12) In this paragraph—
“commence” includes the permitted preliminary works where they take place in the river Thames,
“plans” shall, in respect of the exercising of article 27, only mean such information which the PLA publishes on its website from time to time as being required to accompany an application for a licence to dredge under section 73 (licensing of dredging, etc.) of the 1968 Act and any documents required by the PLA pertaining to sampling, but not any other document listed under the definition of plans in paragraph 58, in respect of the exercising of article 27, and
“the paragraph 59 specified day” means, in relation to any specified work or specified function—
the day on which plans and sections of that work or function are submitted to the PLA under sub-paragraph (1); or
the day on which the undertaker provides the PLA with all further particulars of the work or function that have been requested by the PLA under that sub-paragraph, whichever is the later.
As built drawings
60 As soon as reasonably practicable following the completion of the construction of the authorised development, the undertaker must provide to the PLA as built drawings of any specified works in a form and scale to be agreed between the undertaker and the PLA to show the position of those works in relation to the river Thames.
Discharges, etc.
61 (1) The undertaker must not without the consent of the PLA exercise the powers conferred by article 21 (discharge of water) so as to—
(a) deposit in or allow to fall or be washed into the river Thames any gravel, soil or other material;
(b) discharge or allow to escape either directly or indirectly into the river Thames any offensive or injurious matter in suspension or otherwise; or
(c) directly or indirectly discharge any water into the river Thames.
(2) Any consent of the PLA under this paragraph must not be unreasonably withheld or delayed but may be given subject to such terms and conditions as the PLA may reasonably impose.
(3) Any consent under this paragraph is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 35 days of the day on which the request for consent is submitted under sub-paragraph (1).
62 The undertaker must not, in exercise of the powers conferred by article 21 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river Thames unless such damage or interference is approved as a specified work under this Order or otherwise forms part of the authorised development and is otherwise approved by the PLA.
Navigational lights, buoys, etc.
63 (1) The undertaker must, at or near a specified work, a structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act) or a location where a specified function is being exercised, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the PLA may from time to time reasonably require.
(2) The PLA must give the undertaker not less than 20 business days’ written notice of a requirement under sub-paragraph (1) except in the case of emergency when the PLA must give such notice as is reasonably practicable.
Directions as to lights
64 The undertaker must comply with any reasonable directions issued from time to time by the PLA Harbour Master with regard to the lighting of—
(a) a specified work or a structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act); or
(b) the carrying out of a specified function or the use of apparatus for the purposes of such a function,
or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river Thames.
Permanent lights on tidal works
65 After the completion of a specified work the undertaker must at the outer extremity of that work exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as the PLA may from time to time direct.
Removal, etc. of the PLA’s moorings and buoys
66 (1) Subject to sub-paragraph (2), if by reason of the construction of any specified work or the exercise of any specified function it is reasonably necessary for the PLA to incur the cost of—
(a) temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the PLA;
(b) laying down and removing substituted moorings or buoys; or
(c) carrying out dredging operations for any such purpose,
not being costs which it would have incurred for any other reason, the undertaker must pay the costs reasonably so incurred by the PLA.
(2) The PLA must give to the undertaker not less than 20 business days’ notice of its intention to incur such costs, and take into account any representations which the undertaker may make in response to the notice within 10 business days of the receipt of the notice.
Sedimentation, etc. remedial action
67 (1) This paragraph applies if any part of the river Thames has become or is likely to become subject to sedimentation, scouring or other changes in the flow or regime of the river Thames which—
(a) is wholly or partly caused by a specified work or the carrying out of a specified function during the period beginning with the commencement of construction of the work or function and (subject to sub-paragraph (4)) ending with the expiration of six years after the date of completion of all the specified works comprised in the authorised development; and
(b) for the safety of navigation or for the protection of any works in the river Thames, should in the reasonable opinion of the PLA be removed or made good.
(2) Subject to sub-paragraph (3) the undertaker must either—
(a) pay to the PLA any additional expense to which the PLA may reasonably be put in dredging the river Thames to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to either or both the specified work and the specified function; or
(b) carry out the necessary dredging or work to make good the scouring at its own expense and subject to the prior approval of the PLA which may be subject to reasonable conditions but which may not be unreasonably withheld or delayed;
and the expenses payable by the undertaker under this sub-paragraph include any additional expenses accrued or incurred by the PLA in carrying out surveys or studies which may be agreed with the undertaker in connection with the implementation of this paragraph.
(3) If it is established that the sedimentation, scouring or other changes in the flow or regime of the river was partly caused by a specified work or a specified function and partly by another factor, the undertaker’s liability under sub-paragraph (2) is apportioned accordingly.
(4) At any time before the expiry of the period of six years after the date of completion of Work No. 4 (“the completion date”) the PLA may serve notice on the undertaker stating that in the opinion of the PLA the river Thames or any part of it may, after the expiry of that period, become subject to sedimentation, scouring or other changes in its flow or regime wholly or partly caused by a specified work or specified function. Any such notice must specify—
(a) the additional period (not exceeding 10 years after the completion date) during which the provisions of sub-paragraphs (1) and (2) ought to apply; and
(b) the PLA’s reasons for reaching that opinion.
(5) On receipt of any such notice the undertaker may serve a counter-notice within 30 business days beginning on the day the notice was received, such notice to include details of the undertaker’s objection to the PLA’s notice or any conditions it may wish to impose on compliance by the undertaker with the PLA’s notice.
(6) In the event that the PLA and the undertaker cannot agree the matters raised in the PLA’s notice and the undertaker’s counter-notice within two months from the service of the undertaker’s counter-notice, either party may refer the matter to arbitration under paragraph 78.
(7) If the undertaker fails to serve a counter-notice or if it serves a counter-notice and the matter is either agreed between the PLA and the undertaker or determined pursuant to sub-paragraph (6), then the provisions of sub-paragraphs (1) and (2) will apply during such additional period as is specified in the PLA’s notice or as may be so agreed or determined.
Removal of temporary works
68 (1) On completion of the construction of the whole or any part of a permanent specified work, the undertaker must—
(a) as soon as reasonably practicable after such completion seek approval under paragraph 59 for the removal required by sub-paragraph (b); and
(b) as soon as reasonably practicable after the grant of that approval under paragraph 59 remove—
(i) in the case of completion of part of a permanent specified work, any temporary tidal work (other than a residual structure) carried out only for the purposes of that part of the permanent specified work;
(ii) on completion of all the specified works, any remaining temporary tidal work (other than a residual structure); and
(iii) in either case, any materials, plant and equipment used for such construction,
and make good the site to the reasonable satisfaction of the PLA.
(2) For the purposes of the undertaker making good the site in accordance with sub-paragraph (1)(b), the PLA may require that—
(a) any residual structure is cut off by the undertaker at such level below the bed of the river Thames as the PLA may reasonably direct; and
(b) the undertaker takes such other steps to make the residual structure safe as the PLA may reasonably direct.
(3) As soon as reasonably practicable after the undertaker has complied with the PLA’s requirements under sub-paragraphs (1) and (2) in relation to any residual structure, the PLA will grant the undertaker a works licence for that structure under section 66 (licensing of works) of the 1968 Act, and the terms of the licence are to reflect such requirements.
(4) For the avoidance of doubt, article 8 (interaction with the 1968 Act) will not apply to a residual structure which will, accordingly, be subject to sections 66 to 75 of the 1968 Act.
(5) In this paragraph—
“residual structure” means any part of a temporary tidal work that the PLA agrees cannot reasonably be removed by the undertaker on completion of the construction of the permanent specified works; and
“tidal work” means any specified work any part of which is, or may be, or, in, under or over the surface of land below mean high water level forming part of the river Thames.
Protective action
69 (1) If any specified work or the exercise of any specified function—
(a) is constructed or carried out otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given under paragraph 59(4); or
(b) during construction or carrying out gives rise to sedimentation, scouring, currents, wave action, or worsening of the condition of the river bed, which would be materially detrimental to traffic in, or the flow or regime of, the river Thames,
then the PLA may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.
(2) The requirements that may be specified in a notice given under sub-paragraph (1) are—
(a) in the case of a specified work or specified function to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—
(i) this Part of this Schedule; or
(ii) the condition that has been breached; or
(b) in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents, wave action, or material worsening of the condition of the river bed, so far as required by the needs of traffic in, or the flow or regime of, the river Thames.
(3) If the undertaker does not comply with a notice under sub-paragraph (1), or is unable to do so then the PLA may in writing require the undertaker to—
(a) remove, alter or pull down the specified work, and where the specified work is removed to restore the site of that work (to such extent as the PLA reasonably requires) to its former condition; or
(b) take such other action as the PLA may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.
(4) If a specified work gives rise to materially new or materially different environmental effects than those identified in any environmental document, the undertaker must, in compliance with its duties under any enactment, take such action as is necessary to prevent or mitigate adverse environmental impacts and in so doing must consult and seek to agree the necessary measures with the PLA.
(5) If the PLA becomes aware that any specified work is causing materially new or materially different environmental effects than those identified in any environmental document, the PLA must notify the undertaker of that environmental impact, the reasons why the PLA believes that an adverse environmental impact is being caused by the specified work and of measures that the PLA reasonably believes are necessary to counter or mitigate that adverse environmental impact. The undertaker must implement either the measures that the PLA has notified to the undertaker or such other measures as the undertaker believes are necessary to counter the adverse environmental impact identified, giving reasons to the PLA as to why it has implemented such other measures.
(6) In this paragraph “environmental document” means—
(a) the environmental statement; and
(b) any other document containing environmental information provided by the undertaker to the PLA for the purposes of any approval under paragraph 59.
Abandoned or decayed works
70 (1) If a specified work or a structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act) is abandoned or falls into decay, the PLA may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the specified work or structure, or any part of it, or to remove the specified work or structure and (to such extent and within such limits as the PLA reasonably requires) restore the site of that work to its condition prior to the construction of the specified work or structure.
(2) If any specified work or structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act) is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river Thames, the PLA may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—
(a) to repair and restore the work or structure or part of it; or
(b) if the undertaker so elects, to remove the specified work or structure and (to such extent as the PLA reasonably requires) to restore the work or structure to its former condition.
(3) If on the expiration of such reasonable period as may be specified in a notice under this paragraph the work specified in the notice has not been completed to the satisfaction of the PLA, the PLA may undertake that work and any expenditure reasonably incurred by the PLA in so doing is recoverable from the undertaker.
Facilities for navigation
71 (1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river Thames without the consent of the PLA, and must ensure that access to such aids remains available during and following construction of any specified work or the exercise of any specified function.
(2) The undertaker must provide at any specified work, or must afford reasonable facilities at such work (including an electricity supply) for the PLA to provide at the undertaker’s cost, from time to time such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation as the undertaker or the PLA may deem necessary by reason of the construction and presence of the specified work and must ensure access remains available to such facilities during and following construction of the specified work.
Survey of riverbed
72 (1) The PLA may, at the undertaker’s expense (such expense to be that which is reasonably incurred), carry out a survey (or externally procure the carrying out of a survey) for the purpose of establishing the condition of the river Thames—
(a) before the commencement of construction of the first specified work below mean high water level to be constructed following approval under paragraph 59;
(b) before the commencement of construction of any other specified work, or the carrying out of any other specified function, approved under paragraph 59;
(c) during the construction of any specified work, or the carrying out of any specified function, as is reasonably required, and
(d) after completion of, respectively—
(i) any specified work and the exercise of all related specified functions; and
(ii) all the specified works constructed and specified functions carried out under this Order in relation to such construction,
of such parts of the river Thames as might be affected by sedimentation, scouring, currents, wave action or material worsening of the condition of the river bed that might result from the construction of the relevant specified work, or the carrying out of a specified function as would, if it were to be constructed or carried out, constitute specified works, or give rise to operations, below mean high water level.
(2) Except where it relates to the authorised navigational channel of the river Thames or in an emergency, the PLA may only carry out surveys under sub-paragraph (1)(c)—
(a) if it has given at least 14 days’ notice of its intention to do so to the undertaker (unless otherwise agreed by the undertaker);
(b) if the timing of the survey has been agreed in advance of the surveys by the undertaker; and
(c) subject to the undertaker’s ability to refuse access for surveys if the undertaker considers that the carrying out of surveys at that time would lead to safety concerns in the construction of the specified work or the carrying out of the specified function.
(3) The PLA must make available to the undertaker the results of any survey carried out under this paragraph.
(4) The PLA must not under this paragraph carry out a survey of any part of the river Thames in respect of which the undertaker has provided to the PLA survey material which the PLA is satisfied establishes the condition of the river Thames, and in the case of a survey under sub-paragraph (1)(b), the effect of the specified works and the specified functions.
(5) A survey carried out under this paragraph is the property of the PLA.
Consideration for dredged material
73 (1) The undertaker must pay to the PLA for material dredged by the undertaker under this Order from so much of the river Thames of which the freehold is vested in the PLA, consideration calculated at a rate agreed between them and otherwise in accordance with this paragraph.
(2) The consideration due under sub-paragraph (1) applies only in respect to material dredged in the course of the construction of the authorised development based on the quantity of such material that—
(a) is not used for the construction of the authorised development; and
(b) is sold by the undertaker or by any other person exercising any powers under this Order.
Restriction on powers contained in Part 3 of this Order
74 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order—
(a) nothing contained in Part 3 of this Order nor article 39 (statutory undertakers) authorises the acquisition of any interest in, or the acquisition, appropriation, interference, overriding or extinguishment of any right in, on or over, or the imposing of restrictive covenants in any Order land (including airspace and subsoil) if the interest or right or the land to be affected by the restrictive covenant is (at the time of the proposed acquisition, appropriation, interference, overriding, extinguishment or the imposition of the restrictive covenant) land, airspace, subsoil or a right is vested in the PLA; and
(b) nothing contained in article 37 (temporary use of land for carrying out the authorised development) or article 38 (temporary use of land for maintaining the authorised development) authorises the entering on and taking temporary possession or the entering of land (including airspace and subsoil) to gain access for maintenance in any Order land if the land at the time of the proposed entry the land, airspace or subsoil is vested in the PLA.
Protection for the PLA’s functions
75 (1) Subject to article 8 (interaction with the 1968 Act) the exercise in, under or over the river Thames by the undertaker of any of its functions under this Order is subject to—
(a) any enactment relating to the PLA;
(b) any byelaw, direction or other requirement made by the PLA or the PLA Harbour Master under any enactment; and
(c) any other exercise by the PLA or the PLA Harbour Master of any function conferred by or under any enactment.
(2) The undertaker must not take any action in the river Thames in relation to the removal from the Order limits of any vessel or other thing except with the consent of the PLA Harbour Master, which must not be unreasonably withheld or delayed.
Indemnity
76 (1) The undertaker is responsible for and must make good to the PLA all financial costs, charges, damages, losses or expenses which may be incurred reasonably or suffered by the PLA by reason of—
(a) the construction or operation of a specified work or its failure;
(b) the exercise of any specified function; or
(c) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged on the construction or operation of a specified work or exercise of a specified function dealing with any failure of a specified work,
and the undertaker must indemnify the PLA from and against all claims and demands arising out of or in connection with the specified works or specified functions or any such failure, act or omission.
(2) The undertaker will pay to the PLA its proper and reasonable legal costs, professional fees and disbursements incurred in connection with reviewing detailed design information, construction information and any other information submitted to the PLA in respect of a specified work or a specified function.
(3) The undertaker will pay to the PLA the proper and reasonable costs of any notice to mariners that are required to be issued as a result of article 25(6) (works in the River Thames: conditions).
(4) The fact that any act or thing may have been done—
(a) by the PLA on behalf of the undertaker; or
(b) by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the PLA, or in a manner approved by the PLA, or under its supervision or the supervision of its duly authorised representative,
does not (if it was done or required without negligence on the part of the PLA or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.
(5) The PLA must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1) and no settlement or compromise of it is to be made without the prior consent of the undertaker.
Consultation
77 (1) The undertaker must consult with the PLA on draft documentation, prior to the submission of any plan, scheme or strategy under requirements 7 (code of construction practice), 10 (emergency preparedness and response plan), 11 (lighting strategy), 16 (jetty works environmental design scheme) and 23 (decommissioning environmental management plan) which relate to Work No. 4, to the relevant planning authority.
(2) The undertaker must consult with the PLA on any updates to a plan, scheme or strategy approved under requirements 7 (code of construction practice), 10 (emergency preparedness and response plan), 11 (lighting strategy), 16 (jetty works environmental design scheme) and 23 (decommissioning environmental management plan) which relate to Work No. 4, prior to submission to the relevant planning authority under requirement 3 (approved details and amendments to them).
Disputes
78 Subject to any protocol agreed in writing by the parties, any dispute arising between the undertaker and the PLA under this Part of this Schedule is to be determined by arbitration as provided in article 49 (arbitration).
PART 6 FOR THE PROTECTION OF UK POWER NETWORKS LIMITED, LONDON POWER NETWORKS PLC AND SOUTH EASTERN POWER NETWORKS PLC
79 For the protection of the utility undertakers referred to in this Part of this Schedule, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertakers concerned.
80 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by that utility undertaker;
“functions” includes powers and duties;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land; and
“utility undertaker” means—
UK Power Networks Limited, whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP;
London Power Networks plc, whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP;
South Eastern Power Networks plc, whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP;
for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
81 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
82 Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), a utility undertaker is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.
83 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than with the prior written agreement of the utility undertaker.
84 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (6).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 49 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that it desires itself to execute any work, or part of any work, in connection with the removal of apparatus or construction of alternative apparatus in any land controlled by the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay and only in accordance with plans approved by the utility undertaker, such approval may be subject to such reasonable conditions including but not limited to the undertaker entering into an assets protection agreement with the utility undertaker as the utility undertaker deems necessary. The undertaker must carry out the works under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker subject to the utility undertaker’s reasonable specification.
85 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
86 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 85, the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.
(4) If a utility undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 79 to 85 apply as if the removal of the apparatus had been required by the undertaker under paragraph 84(2).
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
87 (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 84(2).
(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraph 84(2); and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1) if the works include the placing of apparatus provided in substitution for apparatus placed more than seven years and six months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
88 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 84(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—
(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker, by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph 84(2)imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(3) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
89 Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 84(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 86, the undertaker must use reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its reasonable endeavours to co-operate with the undertaker for that purpose.
90 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaking in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 7 FOR THE PROTECTION OF SOUTHERN GAS NETWORKS PLC AS GAS UNDERTAKER
Application
91 For the protection of SGN the following provisions will, unless otherwise agreed in writing between the undertaker and SGN, have effect.
Interpretation
92 In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the satisfaction of SGN to enable SGN to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by SGN for the purposes of gas distribution together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of SGN for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2 (interpretation) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;
“commence” has the same meaning as in article 2 (interpretation) and commencement is to be construed to have the same meaning save that for the purposes of this Part of the Schedule the terms “commence” and “commencement” include the permitted preliminary works;
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary and/or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by SGN (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, requires the undertaker to submit for SGN’s approval a ground mitigation scheme;
“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of SGN including retain, lay, construct, inspect, maintain, protect, use, access, enlarge, replace, renew, remove, decommission or render unusable or remove the apparatus;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“parent company” means a parent company of the undertaker acceptable to SGN and which shall have been approved by SGN acting reasonably;
“rights” includes rights and restrictive covenants, and in relation to decommissioned apparatus the surrender of rights, release of liabilities and transfer of decommissioned apparatus;
“SGN” means Southern Gas Networks plc or its successors in title or successor bodies and/or any successor as a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986.
“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—
will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under sub-paragraph 97(2) or otherwise; and/or
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under sub-paragraph 97(2) or otherwise;
“undertaker” means the undertaker as defined in article 2 (interpretation) of this Order.
On Street Apparatus
93 (1) Except for paragraphs 94 (apparatus of SGN in stopped up streets), 97 (removal of apparatus) in so far as sub-paragraph 94(2) applies, 98 (facilities and rights for alternative apparatus) in so far as sub-paragraph (2) below applies, 99 (retained apparatus: protection of SGN), 100 (expenses) and 101 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of SGN, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and SGN are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
(2) Paragraphs 97 and 98 of this Part of this Schedule apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within existing adopted public highway.
Apparatus of SGN in stopped up streets
94 (1) Without prejudice to the generality of any other protection afforded to SGN elsewhere in the Order, where any street is stopped up under article 15 (permanent stopping up of specified street and private means of access) if SGN has any apparatus in the street or accessed via that street SGN will be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to SGN, or will procure the granting to SGN of, legal easements reasonably satisfactory to SGN in respect of such apparatus and access to it prior to the stopping up of any such street or highway, but nothing in this paragraph affects any right of the undertaker or of SGN to require the removal of that apparatus under paragraph 97.
(2) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), SGN will be at liberty at all times to take all necessary access across any such stopped up highway and/or to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.
Protective works to buildings
95 (1) The undertaker, in the case of the powers conferred by article 23 (protective works to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of SGN and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of SGN or any interruption in the supply of gas by SGN, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by SGN in making good such damage or restoring the supply; and, subject to sub-paragraph (2), shall—
(a) pay compensation to SGN for any loss sustained by it; and
(b) indemnify SGN against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by SGN, by reason of any such damage or interruption.
(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of SGN or its contractors or workmen; and SGN will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made by SGN, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.
Acquisition of land
96 (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire any land interest or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of SGN otherwise than by agreement.
(2) The undertaker and SGN agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus/including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by SGN and/or other enactments relied upon by SGN as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.
(3) Any agreement or consent granted by SGN under paragraph 99 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).
(4) As a condition of an agreement between the parties in sub-paragraph (1) that involves decommissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement and/or other interest of SGN in such decommissioned apparatus and consequently acquire title to such decommissioned apparatus and release SGN from all liabilities in respect of such decommissioned apparatus from the date of such surrender.
(5) Where an undertaker acquires land which is subject to any SGN right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 97 do not apply, the undertaker must—
(a) retain any notice of SGN’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and
(b) (where no such notice of SGN’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of SGN’s easement, right or other interest in relation to such acquired land; and
(c) provide up to date official entry copies to SGN within 20 business days of receipt of such up to date official entry copies.
Removal of apparatus
97 (1) If, in the exercise of the agreement reached in accordance with paragraph 91 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of SGN to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation to the reasonable satisfaction of SGN and in accordance with sub-paragraphs (2) to (5) inclusive.
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to SGN advance written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order SGN reasonably needs to move or remove any of its apparatus) the undertaker must afford to SGN to its satisfaction (taking into account sub-paragraph 98(1) below) the necessary facilities and rights—
(a) for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus);
(b) subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus); and
(c) to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus).
(3) If the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, SGN may, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for SGN to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between SGN and the undertaker.
(5) SGN must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to SGN of such facilities and rights as are referred to in sub-paragraph (2) or (3) have been afforded to SGN to its satisfaction, then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.
Facilities and rights for alternative apparatus
98 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for SGN facilities and rights in land for the access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and SGN and must be no less favourable on the whole to SGN than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by SGN.
(2) If the facilities and rights to be afforded by the undertaker and agreed with SGN under sub-paragraph (1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to SGN than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed then the terms and conditions to which those facilities and rights are subject in the matter are referred to arbitration in accordance with paragraph 105 of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to SGN as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus: protection of SGN
99 (1) Not less than 56 days before the commencement of any specified works, the undertaker must where reasonably required by SGN submit to SGN a plan and, a ground monitoring scheme in respect of those works.
(2) In relation to works which will or may be situated on, over, under or within (a) ten metres measured in any direction of any apparatus, or (b) involve embankment works within ten metres of any apparatus, the plan to be submitted where reasonably required to SGN under sub-paragraph (1) must include a method statement and describe—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;
(d) the position of all apparatus;
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and
(f) any intended maintenance regimes.
(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until SGN has given written approval of the plan so submitted.
(4) Any approval of SGN required under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7); and
(b) must not be unreasonably withheld or delayed.
(5) In relation to any work to which sub-paragraphs (1) and/or (2) apply, SGN may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or as relevant sub-paragraph (4), as approved or as amended from time to time by agreement between the undertaker and SGN and in accordance with all conditions imposed under sub-paragraph (4)(a), and SGN will be entitled to watch and inspect the execution of those works.
(7) Where SGN requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to SGN’s satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required and SGN must give 45 days’ notice of such works from the date of submission of a plan pursuant to this paragraph (except in an emergency).
(8) If SGN, in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 91 to 93 and 96 to 98 apply as if the removal of the apparatus had been required by the undertaker under paragraph 97(2).
(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the authorised works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.
(10) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act, but in that case it must give to SGN notice as soon as is reasonably practicable and a plan of those works and must comply with—
(a) the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and
(b) sub-paragraph (11) at all times.
(11) As soon as reasonably practicable after any ground subsidence event which is known to or may have affected apparatus attributable to the authorised development the undertaker must implement an appropriate ground mitigation scheme save that SGN retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 100.
Expenses
100 (1) Subject to the following provisions of this paragraph, the undertaker must pay to SGN on demand all charges, costs and expenses reasonably anticipated or incurred by SGN in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or rights or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by SGN in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by SGN as a consequence of SGN—
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 97(3) if it elects to do so; and/or
(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting SGN;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;
(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule;
(g) any watching brief pursuant to paragraph 99(6).
(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to SGN by virtue of sub-paragraph (1) will be reduced by the amount of that excess save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole must be treated as if it also had been agreed or had been so determined.
Indemnity
101 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of SGN, or there is any interruption in any service provided, or in the supply of any goods, by SGN, or SGN becomes liable to pay any amount to any third party, the undertaker must—
(a) bear and pay on demand the cost reasonably incurred by SGN in making good such damage or restoring the supply; and
(b) indemnify SGN for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from SGN, by reason or in consequence of any such damage or interruption or SGN becoming liable to any third party as aforesaid other than arising from any default of SGN.
(2) The fact that any act or thing may have been done by SGN on behalf of the undertaker or in accordance with a plan approved by SGN or in accordance with any requirement of SGN or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless SGN fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan or as otherwise agreed between the undertaker and SGN.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—
(a) any damage or interruption to the extent that it is attributable to the neglect or default of SGN, its officers, servants, contractors or agents; and
(b) any authorised works and/or any other works authorised by this Part of this Schedule carried out by SGN as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 (benefit of order granting development consent) of the Planning Act 2008 or article 10 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph will be subject to the full terms of this Part of this Schedule including this paragraph.
(4) SGN must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.
(5) SGN must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, SGN must provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph 101 for claims reasonably incurred by SGN.
Enactments and agreements
102 Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between SGN and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and SGN in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
Co-operation
103 (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or SGN requires the removal of apparatus under paragraph 97(2) or SGN makes requirements for the protection or alteration of apparatus under paragraph 99, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of SGN’s undertaking and SGN must use its best endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever SGN’s consent, agreement or approval is required in relation to plans, documents or other information submitted by SGN or the taking of action by SGN, it must not be unreasonably withheld or delayed.
Access
104 If in consequence of the agreement reached in accordance with paragraph 96(1) or the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable SGN to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
105 Save for differences or disputes arising under paragraphs 97(2), 97(4), 98(1) and 99, any difference or dispute arising between the undertaker and SGN under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and SGN, be determined by arbitration in accordance with article 49 (arbitration).
Notices
106 The plans submitted to SGN by the undertaker pursuant to paragraph 99(1) must be sent to SGN at 1 Forbury Place, 43 Forbury Road, Reading, Berkshire RG1 3JH or such other address as SGN may from time to time appoint instead for that purpose and notify to the undertaker.
PART 8 FOR THE PROTECTION OF REPL
107 For the protection of REPL as referred to in this Part of this Schedule the following provisions have effect unless otherwise agreed in writing between the undertaker and REPL.
108 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable REPL to fulfil its functions in a manner no less efficient than previously;
“apparatus” means any electric cables, electrical plant, drains, mains, sewers, pipes, conduits or any other apparatus belonging to or maintained by REPL and used for, or for purposes connected with, waste treatment and disposal and the generation, transmission, distribution or supply of electricity and/or heat generated at the REPL facility and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised development” has the same meaning as in article 2 (interpretation) of this Order;
“functions” includes powers and duties;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“internal street” means any roads that service the REPL facility and which are located within the REPL facility perimeter;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“REPL facility” means the energy from waste facility and associated infrastructure known as Riverside 2 at Norman Road, Belvedere, Bexley, Kent;
“REPL facility perimeter” means that part of the Order land identified as plots 1-048, 1-049, 1-051, 1-054, 1-055, 1-059, 1-060, 1-061, 1-064, 1-065, 1-066, 1-068, 1-070, 1-071, 1-075, 1-081, 1-082, 1-085, 1-088 and 1-115 on the land plans; and
“REPL land” means that part of the Order land in the freehold ownership of REPL which, as at the date upon which this Order comes into force pursuant to article 1 (citation and commencement), are those plots identified as being in the freehold ownership of REPL in the book of reference.
109 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus within the REPL land otherwise than by agreement.
110 The undertaker must ensure that REPL is at liberty at all times to, except in the case of where to do so would, in the undertaker’s discretion, lead to adverse safety impacts—
(a) take all necessary access across any street used to access the REPL facility (including any internal street), including in cases where that street has been temporarily stopped up under article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way) or is subject to any traffic regulation measure pursuant to article 20 (traffic regulation measures); and
(b) execute and do all such works and things in, upon or under any such street (including any internal street) used to access the REPL facility, including in cases where that street has been temporarily stopped up under article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), or is subject any traffic regulation measure pursuant to article 20 (traffic regulation measures), as may be reasonably necessary or desirable to enable it to maintain any apparatus which is in that street (including any internal street) used to access the REPL facility.
111 (1) If, in the exercise of the powers conferred by this Order, the undertaker—
(a) acquires any interest in the REPL land in which any apparatus is placed or over which access to any apparatus is enjoyed; or
(b) requires that REPL’s apparatus within the REPL land is relocated, diverted or removed, any right of REPL to any part of the REPL land and/or to maintain that apparatus in that land and to gain access to it must not be extinguished, and that apparatus must not be relocated, diverted or removed, until equivalent rights have been granted to REPL for alternative apparatus and equivalent alternative apparatus has vested in REPL and (in relation to apparatus) has been constructed and is in operation, and access to it has been provided. The location of equivalent alternative apparatus and rights for the equivalent alternative apparatus must in each case be agreed between the undertaker and REPL before any step is taken to extinguish, relocate, divert or remove as aforesaid.
(2) If, for the purpose of executing any works in, on or under the REPL land, the undertaker requires the relocation, diversion or removal of any apparatus placed in the REPL land, the undertaker must give to REPL for approval written notice of that requirement, a plan and section of the work proposed and of the proposed position of the alternative apparatus together with a timetable for when the alternative apparatus is to be provided or constructed by the undertaker.
(3) The approval of REPL under sub-paragraph (2) must not be unreasonably withheld or delayed and if by the end of the period of 28 days beginning with the date on which the notice, plan, section and timetable have been supplied to REPL, REPL has not intimated approval or disapproval of such notice, plan, section and timetable and the grounds of disapproval, REPL is deemed to have approved the said notice, plan, section and timetable as submitted.
(4) When giving its approval under sub-paragraph (2), REPL may specify such reasonable requirements that are necessary in the provision or construction of the alternative apparatus.
(5) In the event that REPL issues a disapproval to the notice, plan, section and timetable within the 28 day period referred to in sub-paragraph (3), the undertaker may refer the matter to arbitration in accordance with article 49 (arbitration).
(6) Subject to sub-paragraph (8), any alternative apparatus to be provided or constructed pursuant to this paragraph must be provided or constructed by the undertaker within a timescale, to a standard and in such manner and in such line or situation as is agreed with REPL or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(7) Where the alternative apparatus is to be provided or constructed on land of the undertaker and once the undertaker has provided or constructed the alternative apparatus, the undertaker must grant REPL the necessary rights to access and maintain the alternative apparatus on that land.
(8) If in the approval to the notice, plan, section and timetable under sub-paragraph (2) or by the end of the period of 28 days beginning with the date on which the arbitrator settles the alternative apparatus to be provided or constructed, REPL gives notice to the undertaker that it desires to provide or construct the alternative apparatus and this is agreed to by the undertaker, (acting reasonably) REPL, after the grant to REPL of the rights as are referred to in sub-paragraph (9), must proceed without unnecessary delay to provide and construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(9) Where REPL is to provide or construct the alternative apparatus, and the alternative apparatus is to be provided or constructed on land of the undertaker, the undertaker must grant REPL the necessary rights to provide or construct the alternative apparatus on that land and grant REPL the necessary rights to access and maintain the alternative apparatus on that land.
112 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to REPL rights in land of the undertaker for the construction and maintenance of alternative apparatus in substitution for apparatus to be removed, those rights must be granted upon such terms and conditions as may be agreed between the undertaker and REPL or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(2) If the rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those rights are to be granted, are in the opinion of the arbitrator materially less favourable on the whole to REPL than the rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to REPL as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
113 (1) Not less than 28 days before starting the execution of any works in, on or under the REPL land that may materially affect the operation of the REPL facility, the undertaker must submit to REPL for approval a plan, section and description of the works to be executed and a timetable for when such works are to be carried out.
(2) The approval of REPL under sub-paragraph (1) must not be unreasonably withheld or delayed and if by the end of the period of 28 days beginning with the date on which the plan, section, description and timetable have been supplied to REPL, REPL has not intimated disapproval of such plan, section, description and timetable and the grounds of disapproval, REPL is deemed to have approved the said plan, section description and timetable as submitted.
(3) When giving its approval under sub-paragraph (1), REPL may specify such reasonable requirements which in REPL’s opinion are necessary in the execution of the works.
(4) The works described in sub-paragraph (1) must be executed only in accordance with the plan, section, description and timetable submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be given in accordance with sub-paragraph (3) by REPL. Where REPL reasonably requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to REPL’s reasonable satisfaction prior to the works described in sub-paragraph (1).
(5) In the event that REPL issues a disapproval to the plan, section, description and timetable within the 28 day period referred to in sub-paragraph (1), the undertaker may refer the matter to arbitration in accordance with article 49 (arbitration).
(6) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(7) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency works (as defined in the 1991 Act) but in that case it must give to REPL notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraphs (3) and (4) in so far as is reasonably practicable in the circumstances.
114 (1) Subject to the following provisions of this paragraph, the undertaker must repay to REPL the reasonable expenses incurred by REPL in, or in connection with, the inspection, removal, alteration or protection of any apparatus within the REPL land or the provision or construction of any alternative apparatus which REPL elects to carry out itself as referred to in paragraph 111(8).
(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to REPL by virtue of sub-paragraph (1) will be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraph 111(2); and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(c) an amount which apart from this sub-paragraph would be payable to REPL in respect of works by virtue of sub-paragraph (1) if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on REPL any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
115 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and REPL in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
116 Where in consequence of the proposed construction or maintenance of any part of the authorised development, the undertaker or REPL requires the removal of apparatus or REPL makes requirements for the protection or alteration of apparatus, the undertaker shall use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution and maintenance of the authorised development and taking into account the need to ensure the safe and efficient operation of REPL’s undertaking and REPL shall use its reasonable endeavours to co-operate with the undertaker for that purpose.
117 If in consequence of any agreement reached or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable REPL to maintain or use the apparatus no less effectively than was possible before such obstruction.
118 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any part of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, use or maintenance, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of REPL, or there is any interruption in any service provided, or in the supply of any goods, by REPL, or REPL becomes liable to pay any amount to any third party, the undertaker will—
(a) bear and pay on demand the cost reasonably incurred by REPL in making good such damage or restoring the supply; and
(b) indemnify REPL for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from REPL, by reason or in consequence of any such damage or interruption or REPL becoming liable to any third party as aforesaid other than arising from any default of REPL.
(2) The fact that any act or thing may have been done by REPL on behalf of the undertaker or in accordance with a plan approved by REPL or in accordance with any requirement of REPL or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless REPL fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan or as otherwise agreed between the undertaker and REPL.
(3) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of–
(a) any damage or interruption to the extent that it is attributable to the neglect or default of REPL, its officers, servants, contractors or agents; and
(b) any part of the authorised development and/or any other works authorised by this Part of this Schedule carried out by REPL, whether pursuant to article 9 (benefit of this Order) or as an assignee, transferee or lessee of a person with the benefit of the Order pursuant to section 156 (benefit of order granting development consent) of the Planning Act 2008 or article 10 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus, any part of the authorised development yet to be executed and not falling within this sub-paragraph will be subject to the full terms of this Part of this Schedule including this paragraph.
(4) REPL must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.
(5) REPL must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, REPL shall provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph for claims reasonably incurred by REPL.
PART 9 FOR THE PROTECTION OF EACH RRRL ENTITY
119 For the protection of each RRRL Entity as referred to in this Part of this Schedule the following provisions have effect unless otherwise agreed in writing between the undertaker and the applicable RRRL Entity.
120 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable each RRRL Entity to fulfil its functions in a manner no less efficient than previously;
“apparatus” means any electric cables, electrical plant, drains, mains, sewers, pipes, conduits or any other apparatus belonging to or maintained by any RRRL Entity and used for, or for purposes connected with, waste treatment and disposal and the generation, transmission, distribution or supply of electricity and/or heat generated at the RRRL facility and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised development” has the same meaning as in article 2 (interpretation) of this Order;
“functions” includes powers and duties;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“internal street” means any roads that service the RRRL facility and which are located within the RRRL facility perimeter;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“RRRL facility” means the energy from waste facility and associated infrastructure known operated at the date of this Order by RRRL at Norman Road, Belvedere, Bexley, Kent;
“RRRL facility perimeter” means that part of the Order land identified as plots 1-008, 1-009, 1-019, 1-032, 1-034, 1-035, 1-037, 1-039, 1-040, 1-043, 1-045, 1-048, 1-049, 1-051, 1-052, 1-054, 1-055, 1-056, 1-058, 1-059, 1-060, 1-061, 1-062, 1-063, 1-064, 1-065, 1-066, 1-067, 1-069, 1-071, 1-073, 1-074, 1-075, 1-076, 1-077, 1-078, 1-079, 1-080, 1-084, 1-086, 1-087, 1-091, 1-096, 1-105, 1-109 and 1-112 on the land plans; and
“RRRL land” means that part of the Order land in the freehold ownership of RRRL which, as at the date upon which this Order comes into force pursuant to article 1 (citation and commencement), are those plots identified as being in the freehold ownership of RRRL in the book of reference.
121 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus within the RRRL land otherwise than by agreement.
122 The undertaker must ensure that each RRRL Entity is at liberty at all times to, except in the case of where to do so would, in the undertaker’s discretion, lead to adverse safety impacts—
(a) take all necessary access across any street used to access the RRRL facility (including any internal street), including in cases where that street has been temporarily stopped up under article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way) or is subject any traffic regulation measure pursuant to article 20 (traffic regulation measures); and
(b) execute and do all such works and things in, upon or under any such street (including any internal street) used to access the RRRL facility, including in cases where that street has been temporarily stopped up under article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), or is subject any traffic regulation measure pursuant to article 20, as may be reasonably necessary or desirable to enable it to maintain any apparatus which is in that street (including any internal street) used to access the RRRL facility.
123 (1) If, in the exercise of the powers conferred by this Order, the undertaker—
(a) acquires any interest in the RRRL land in which any apparatus is placed or over which access to any apparatus is enjoyed; or
(b) requires that any RRRL Entity’s apparatus within the RRRL land is relocated, diverted or removed, any right of a RRRL Entity to any part of the RRRL land and/or to maintain that apparatus in that land and to gain access to it must not be extinguished, and that apparatus must not be relocated, diverted or removed, until equivalent rights have been granted to each RRRL Entity for alternative apparatus and equivalent alternative apparatus has vested in the applicable RRRL Entity and (in relation to apparatus) has been constructed and is in operation, and access to it has been provided to each RRRL Entity. The location of equivalent alternative apparatus and rights for the equivalent alternative apparatus must in each case be agreed between the undertaker and each RRRL Entity before any step is taken to extinguish, relocate, divert or remove as aforesaid.
(2) If, for the purpose of executing any works in, on or under the RRRL land, the undertaker requires the relocation, diversion or removal of any apparatus placed in the RRRL land, the undertaker must give to each RRRL Entity for approval written notice of that requirement, a plan and section of the work proposed and of the proposed position of the alternative apparatus together with a timetable for when the alternative apparatus is to be provided or constructed by the undertaker.
(3) The approval of each RRRL Entity under sub-paragraph (2) must not be unreasonably withheld or delayed and if by the end of the period of 28 days beginning with the date on which the notice, plan, section and timetable have been supplied to each RRRL Entity, a RRRL Entity has not intimated approval or disapproval of such notice, plan, section and timetable and the grounds of disapproval, such RRRL Entity is deemed to have approved the said notice, plan, section and timetable as submitted.
(4) When giving its approval under sub-paragraph (2), each RRRL Entity may specify such reasonable requirements that are necessary in the provision or construction of the alternative apparatus.
(5) In the event that any RRRL Entity issues a disapproval to the notice, plan, section and timetable within the 28 day period referred to in sub-paragraph (3), the undertaker may refer the matter to arbitration in accordance with article 49 (arbitration).
(6) Subject to sub-paragraph (8), any alternative apparatus to be provided or constructed pursuant to this paragraph must be provided or constructed by the undertaker within a timescale, to a standard and in such manner and in such line or situation as is agreed with each RRRL Entity or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(7) Where the alternative apparatus is to be provided or constructed on land of the undertaker and once the undertaker has provided or constructed the alternative apparatus, the undertaker must grant each RRRL Entity the necessary rights to access and maintain the alternative apparatus on that land.
(8) If in the approval to the notice, plan, section and timetable under sub-paragraph (2) or by the end of the period of 28 days beginning with the date on which the arbitrator settles the alternative apparatus to be provided or constructed, a RRRL Entity gives notice to the undertaker that it desires to provide or construct the alternative apparatus and this is agreed to by the undertaker, (acting reasonably) such RRRL Entity, after the grant to such RRRL Entity of the rights as are referred to in sub-paragraph (9), must proceed without unnecessary delay to provide and construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(9) Where a RRRL Entity is to provide or construct the alternative apparatus, and the alternative apparatus is to be provided or constructed on land of the undertaker, the undertaker must grant such RRRL Entity the necessary rights to provide or construct the alternative apparatus on that land and grant each RRRL Entity the necessary rights to access and maintain the alternative apparatus on that land.
124 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to RRRL rights in land of the undertaker for the construction and maintenance of alternative apparatus in substitution for apparatus to be removed, those rights must be granted upon such terms and conditions as may be agreed between the undertaker and each RRRL Entity or in default of agreement settled by arbitration in accordance with article 49 (arbitration).
(2) If the rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those rights are to be granted, are in the opinion of the arbitrator materially less favourable on the whole to a RRRL Entity than the rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to such RRRL Entity as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
125 (1) Not less than 28 days before starting the execution of any works in, on or under the RRRL land that may materially affect the operation of the RRRL facility, the undertaker must submit to each RRRL Entity for approval a plan, section and description of the works to be executed and a timetable for when such works are to be carried out.
(2) The approval of each RRRL Entity under sub-paragraph (1) must not be unreasonably withheld or delayed and if by the end of the period of 28 days beginning with the date on which the plan, section, description and timetable have been supplied to a RRRL Entity, such RRRL Entity has not intimated disapproval of such plan, section, description and timetable and the grounds of disapproval, such RRRL Entity is deemed to have approved the said plan, section description and timetable as submitted.
(3) When giving its approval under sub-paragraph (1), a RRRL Entity may specify such reasonable requirements which in such RRRL Entity’s opinion are necessary in the execution of the works.
(4) The works described in sub-paragraph (1) must be executed only in accordance with the plan, section, description and timetable submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be given in accordance with sub-paragraph (3) by the RRRL Entity. Where a RRRL Entity reasonably requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to such RRRL Entity’s reasonable satisfaction prior to the works described in sub-paragraph (1).
(5) In the event that a RRRL Entity issues a disapproval to the plan, section, description and timetable within the 28 day period referred to in sub-paragraph (1), the undertaker may refer the matter to arbitration in accordance with article 49 (arbitration).
(6) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(7) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency works (as defined in the 1991 Act) but in that case it must give to each RRRL Entity notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraphs (3) and (4) in so far as is reasonably practicable in the circumstances.
126 (1) Subject to the following provisions of this paragraph, the undertaker must repay to each RRRL Entity the reasonable expenses incurred by such RRRL Entity in, or in connection with, the inspection, removal, alteration or protection of any apparatus within the RRRL land or the provision or construction of any alternative apparatus which such RRRL Entity elects to carry out itself as referred to in paragraph 123(8).
(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to a RRRL Entity by virtue of sub-paragraph (1) will be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraph 123(2); and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to a RRRL Entity in respect of works by virtue of sub-paragraph (1) if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on a RRRL Entity any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
127 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and any RRRL Entity in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
128 Where in consequence of the proposed construction or maintenance of any part of the authorised development, the undertaker or any RRRL Entity requires the removal of apparatus or any RRRL Entity makes requirements for the protection or alteration of apparatus, the undertaker shall use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution and maintenance of the authorised development and taking into account the need to ensure the safe and efficient operation of each RRRL Entity’s undertaking and each RRRL Entity shall use its reasonable endeavours to co-operate with the undertaker for that purpose.
129 If in consequence of any agreement reached or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable each RRRL Entity to maintain or use the apparatus no less effectively than was possible before such obstruction.
130 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any part of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, use or maintenance, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of any RRRL Entity, or there is any interruption in any service provided, or in the supply of any goods, by any RRRL Entity, or any RRRL Entity becomes liable to pay any amount to any third party, the undertaker will—
(a) bear and pay on demand the cost reasonably incurred by such RRRL Entity in making good such damage or restoring the supply; and
(b) indemnify such RRRL Entity for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from such RRRL Entity, by reason or in consequence of any such damage or interruption or such RRRL Entity becoming liable to any third party as aforesaid other than arising from any default of such RRRL Entity.
(2) The fact that any act or thing may have been done by a RRRL Entity on behalf of the undertaker or in accordance with a plan approved by such RRRL Entity or in accordance with any requirement of such RRRL Entity or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (2) unless such RRRL Entity fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan or as otherwise agreed between the undertaker and such RRRL Entity.
(3) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of—
(a) any damage or interruption to the extent that it is attributable to the neglect or default of such RRRL Entity, its officers, servants, contractors or agents; and
(b) any part of the authorised development and/or any other works authorised by this Part of this Schedule carried out by such RRRL Entity whether pursuant to article 9 (benefit of this Order) or as an assignee, transferee or lessee of a person with the benefit of the Order pursuant to section 156 (benefit of order granting development consent) of the Planning Act 2008 or article 10 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus, any part of the authorised development yet to be executed and not falling within this sub-section 130(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 130.
(4) Each RRRL Entity must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.
(5) Each RRRL Entity must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 130 applies. If requested to do so by the undertaker, the applicable RRRL Entity shall provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph 130 for claims reasonably incurred by a RRRL Entity.
Propose a change